Uber’s use of encrypted messaging may set legal precedents

SAN FRANCISCO: Top executives at Uber Technologies used the encrypted chat app Wickr to hold secret conversations, current and former workers testified in court this week, setting up what could be the first major legal test of the issues raised by the use of encrypted apps inside companies.
The revelations Tuesday and Wednesday about the extensive use of Wickr inside Uber upended the high-stakes legal showdown with Alphabet’s Waymo unit, which accuses the ride-hailing firm of stealing its self-driving car secrets.
Apps such as Wickr, Signal, Telegram, Confide and Snapchat offer security and anonymity, with features including passcodes to open messages and automatic deletion of all copies of a message after as little as a few seconds.
There is nothing inherently unlawful about instructing employees to use disappearing messaging apps, said Timothy Heaphy, a lawyer at Hunton & Williams and a former US Attorney in Virginia.
However, companies have an obligation to preserve records that may be reasonably seen as relevant to litigation or that fall under data retention rules set by industry regulators. In Uber’s situation, chat logs that could help get to the bottom of the trade secrets case are now inaccessible. Uber also faces a criminal investigation over the alleged theft.
“It’s a knotty question for courts and lawyers on when the obligation arises” to preserve records, said Julia Brickell, general counsel at the legal discovery firm H5. But “if someone uses a communication device to specifically hide information from litigation because you knew it would result in litigation, that would be foul from the start.”
Richard Jacobs, a security analyst whom Uber fired in April and now consults for the company, testified Tuesday that up to dozens of employees were trained to used ephemeral messaging systems, including Wickr, to communicate so that their conversations would be clandestine and could not surface in any “anticipated litigation.”
Two officials still at Uber testified Wednesday that multiple teams used Wickr. Among the users, they said, was Anthony Levandowski, a one-time leader of Waymo’s autonomous vehicle efforts who the company alleges brought trade secrets to Uber.
It is unclear when Uber began using Wickr, but the company said that in October of last year it began paying for a business version that gave it the ability to preserve messages for as long as a year instead of a maximum of six days.
While the contents of an individual user’s Wickr account would be impossible to access without the account-holder’s permission, the business version gives the company the ability see whatever information has not been automatically erased.
In the middle of the contentious court hearing Tuesday, Uber Chief Executive Dara Khosrowshahi tweeted: “True that Wickr, Telegram were used often at Uber when I came in. As of Sept 27th I directed my teams NOT to use such Apps when discussing Uber-related business.”
US District Judge William Alsup opened the pre-trial hearing by admonishing attorneys that counsel in future cases can be “found in malpractice” if they do not turn over evidence from specialized communications tools.
An app such as Wickr “could be a way for Levandowski to communicate ‘By the way, how did we do that back at Waymo?’ and all that vanishes in 30 seconds,” Alsup said. “To me it’s plausible that it happened. And the evidence is gone now. Because it was an intentionally set up system to not leave a paper trail.”
Federal civil court guidelines enable judges to tell jurors that they can presume that information covered up by a litigant and now missing would have been negative for that party, Brickell said.
Such a declaration could hurt Uber, as its primary defense has been that Waymo has turned up no concrete evidence of the trade-secret theft. Now, Waymo can claim that such evidence was simply deleted.
“That they were so concerned about covering things up meant that they could have known what they were doing was a crime,” said Nick Akerman, a lawyer at Dorsey & Whitney and a former federal prosecutor in Manhattan. “To me, that’s very powerful evidence.”
Andy Wilson, chief executive of forensics software maker Logikcull, said it is already common for companies to search for usage of encrypted apps or deleted messages when conducting internal investigations.
He said his company’s program is used by Salesforce.com and other businesses to scan emails and chat messages. Emails showing a user signed up for a service such as Signal or Telegram are held against them in internal investigations, he said, as are records showing a text was deleted.
“It’s a huge win for (customers) because it shows ill-intent” on the part of the subject of the investigation, Wilson said.

Elon Musk unveils underground tunnels, offers rides to VIPs

The tunnel is just a test to prove the technology works and could one day cure traffic

For the privately funded test tunnel, Musk acquired a tunnel-boring machine that had been used in a San Francisco Bay Area project and put it down a shaft in a parking lot at the SpaceX headquarters

Updated 18 min 54 sec ago

AP

December 19, 2018 00:00

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LOS ANGELES: Elon Musk unveiled his underground transportation tunnel on Tuesday, allowing reporters and invited guests to take some of the first rides in the revolutionary albeit bumpy subterranean tube — the tech entrepreneur’s answer to what he calls “soul-destroying traffic.”
Guests boarded Musk’s Tesla Model S and rode along Los Angeles-area surface streets about a mile away to what’s known as O’Leary Station. The station, smack dab in the middle of a residential neighborhood — “basically in someone’s backyard,” Musk says — consists of a wall-less elevator that slowly took the car down a wide shaft, roughly 30 feet (9 meters) below the surface.
The sky slowly fell away and the surprisingly narrow tunnel emerged.
“We’re clear,” said the driver, who sped up and zipped into the tunnel when a red track light turned green, making the tube look like something from space or a dance club.
The car jostled significantly during the ride, which was bumpy enough to give one reporter motion sickness while another yelled, “Woo!“
Musk described his first ride as “epic.”
“For me it was a eureka moment,” he told a room full of reporters. “I was like, ‘This thing is going to damn well work.’“
He said the rides are bumpy now because “we kind of ran out of time” and there were some problems with the speed of his paving machine.
“It’ll be smooth as glass,” he said of future systems. “This is just a prototype. That’s why it’s a little rough around the edges.”
The demo rides were also considerably slower — 40 mph (64 kph) — than what Musk says the future system will run at: 150 mph (241 kph). Still, it took only three minutes to go just over a mile from the beginning to the end of the tunnel, the same amount of time it took to accomplish a right-hand turn out of the parking lot and onto a surface street even before the height of Los Angeles’ notorious rush-hour traffic.
The tunnel is just a test to prove the technology works and could one day cure traffic.
Tuesday’s reveal comes almost two years to the day since Musk announced on Twitter that “traffic is driving me nuts” and he was “going to build a tunnel boring machine and just start digging.”
“I am actually going to do this,” he added in response to initial skepticism, a Tweet that was blown up and posted near the entrance to the tunnel for Tuesday’s event, along with other Musk tweets like, “Defeating traffic is the ultimate boss battle.”
The tweets were a nod to Musk’s sense of humor. Just after announcing he was creating a tunnel, he began The Boring Company, tongue in cheek intentional. Since his announcement, Musk has only revealed a handful of photos and videos of the tunnel’s progress.
On Tuesday, he explained for the first time in minute detail just how the system, which he simply calls “loop,” could work on a larger scale beneath cities across the globe. Autonomous, electric vehicles could be lowered into the system on wall-less elevators the size of two cars. Such elevators could be placed almost anywhere cars can go.
A number of autonomous cars would remain inside the system just for pedestrians and bicyclists. Once on the main arteries of the system, every car could run at top speed except when entering and exiting.
“It’s much more like an underground highway than it is a subway,” he said. “It’s not like you’re going through a whole series of stops. Nope, the main arteries will be going super fast, and it’s only when you want to get off the loop system that you slow down.”
Musk said he scrapped his previous plan to run the cars on platforms called skates. Instead, the cars would have to be fitted with specially designed side wheels that pop out perpendicular to the car’s regular tires and run along the tunnel’s track. The cost for such wheels would be about $200 or $300 a car, Musk said.
He said tunnels are the safest place to be in earthquakes — sort of like a submarine during a hurricane is safest beneath the surface — and addressed other concerns such as the noise and disruption of building the tunnels, which he completely dismissed. When workers bored through the end of the test tunnel, for instance, the people in the home 20 feet (6 meters) away “didn’t even stop watching TV.”
“The footsteps of someone walking past your house will be more noticeable than a tunnel being dug under your house,” he said,
Musk said it took about $10 million to build the test tunnel, a far cry from the $1 billion per mile his company says most tunnels take to build.
Musk explained just how he’s cutting costs. Measures include improving the speed of construction with smarter tools, eliminating middlemen, building more powerful boring machines, and instead of hauling out all the dirt being excavated, Musk is turning them into bricks and selling them for 10 cents.
He reiterated the simplicity of all his ideas.
“No Nobel Prize is needed here,” he said. “It’s very simple.”
And he’s not doing it for the money, he said, adding that it’s for the greater good.
“Traffic is a blight on everyone’s life in all cities,” he said. “I really think this is incredibly profound. Hopefully that is coming across.”
Steve Davis, head of The Boring Company, said the interest in the tunnel systems has been significant — anywhere from five to 20 calls a week from various municipalities and stakeholders.
One project Musk is planning on, known as the Dugout Loop, would take Los Angeles baseball fans to Dodger Stadium from one of three subway stations. Another would take travelers from downtown Chicago to O’Hare International Airport. Both projects are in the environmental review phase.
The Boring Company canceled its plans for another test tunnel on Los Angeles’ west side last month after a neighborhood coalition filed a lawsuit expressing concerns about traffic and disruptions from trucks hauling out dirt during the boring process.
For the privately funded test tunnel, Musk acquired a tunnel-boring machine that had been used in a San Francisco Bay Area project and put it down a shaft in a parking lot at the SpaceX headquarters.
Already on Tuesday, Musk’s representatives unveiled a new tunnel-boring machine they say they hope to have online soon, one that can bore four times faster than the one they’ve been using.
Musk’s vision for the underground tunnels is not the same as another of his transportation concepts known as hyperloop. That would involve a network of nearly airless tubes that would speed special capsules over long distances at up to 750 mph (1,200) kph), using a thin cushion of air, magnetism and solar power.
The loop system is designed for shorter routes that wouldn’t require the elimination of air friction, according to The Boring Company.